Information Principles and Adaptive Management

Information principles

The EEZ Act requires that the EPA make full use of its powers to request information, obtain advice, and commission reviews or reports when considering an application for marine consent. ¹⁵⁰  This places a positive obligation on the EPA to seek out further information where there are gaps or inadequacies in the information provided in the marine consent application.

The EPA is also required to base its decisions on the best available information. ¹⁵¹  If information is uncertain or inadequate the EPA must favour caution and environmental protection, and must consider whether an adaptive management approach would allow an activity to be undertaken. ¹⁵²

These requirements are unlike any provision contained in the RMA, although they have some similarities to information principles contained in the Fisheries Act 1996. They are directive. ¹⁵³

Best available information

Best available information is defined to mean ‘the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time’. ¹⁵⁴  This is about ensuring the Decision-Making Committee has “the right amount and quality of information to be able to make a good decision”. It does not require the Committee to have all available information however it means that the Decision-Making Committee may not be able to rely on the information presented by participants in the process and may need to obtain additional information if necessary. ¹⁵⁵

Gaps and ncertainties in the information does not present a difficulty in terms of the requirement to base a decision on the best available information as “gaps and uncertainties arise because the necessary information to remedy these does not exist. It is not a case where important and relevant information is known but has not been shared". ¹⁵⁶

Favouring caution and environmental protection

The requirement that decision-maker must favour caution and environmental protection where the information available to the decision-maker is uncertain or inadequate is a strong direction.This requirement differs from a similar statement in the Fisheries Act 1996: the absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of the Act. ¹⁵⁷  

The purpose of that Act is to provide for the utilisation of fisheries resources while ensuring sustainability. ¹⁵⁸  In comparison, the EEZ Act caution requirement is clearly heavily weighted towards environmental protection.This caution requirement in the EEZ Act also differs from the precautionary approach as expressed in international law: in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” ¹⁵⁹  Significantly, the EEZ Act does not require ‘serious or irreversible adverse effects’ before the caution requirement is triggered. ¹⁶⁰

The Oxford Dictionary definition of “favoured” is preferred or recommended. ¹⁶¹  This means that, when the caution requirement is triggered, environmental protection must be preferred over other matters. This is consistent with the purpose of the EEZ Act which expressly contemplates environmental protection. ¹⁶²

The first Trans-Tasman Resource Decision-Making Committee determined that there was considerable uncertainty in the information provided to it as to both the nature of the environment and the way the mining operation might affect it. They also found information on how Māori existing interests would be addressed to be inadequate. ¹⁶³  As a result, the Decision-Making Committee was required to favour caution and environmental protection. It stated that this requirement is “an absolute one” and “this direction is not to be traded off against the attainment of economic wellbeing”. The Decision-Making Committee noted that section 10(3) makes it clear that applying the information principles is one of the ways the purpose of the EEZ Act is to be achieved. ¹⁶⁴

Adaptive management

The Environment Court has described adaptive management as an experimental approach to management, or ‘structured learning by doing’. It is based on developing dynamic models that attempt to make predictions or hypotheses about the impacts of alternative management policies. Management learning then proceeds by systematic testing of these models, rather than by random trial and error. Adaptive management is most useful when large complex ecological systems are being managed and management decisions cannot wait for final research results. ¹⁶⁵

The Environment Court has identified the following features of adaptive management (in relation to a marine energy project): ¹⁶⁶

• Stages of development are set out;
• The existing environment is established by robust baseline monitoring;
• There are clear and strong monitoring, reporting and checking mechanisms so that steps can be taken before significant adverse effects eventuate;
• These mechanisms must be supported by enforceable resource consent conditions which require certain criteria to be met before the next stage can proceed; and
• There is a real ability to remove all or some of the development that has occurred at that time if the monitoring results warrant it.

Section 61(3) of the EEZ Act requires the decision-maker to “first consider” whether an adaptive management approach would allow the activity to be undertaken. The necessary implication is that there are situations in which an adaptive management approach would not allow the activity to be undertaken.

In the RMA context, the Supreme Court has set out a number of factors to consider when determining whether an adaptive management approach would or would not allow the activity to be undertaken: ¹⁶⁷

(a) the extent of the environmental risk (including the gravity of the consequences if the risk is realised);
(b) the importance of the activity (which could in some circumstances be an activity it is hoped will protect the environment);
(c) the degree of uncertainty; and
(d) the extent to which an adaptive management approach will sufficiently diminish the risk and the uncertainty.

The Supreme Court referred to (d) as “[t]he vital part of the test” and accepted that the following matters must be satisfied for an adaptive management approach to sufficiently diminish the risk and the uncertainty: ¹⁶⁸

(a) good baseline monitoring about the receiving environment;
(b) the conditions provide for effective monitoring of adverse effects using appropriate indicators;
(c) thresholds are set to trigger remedial action before the effects become overly damaging; and
(d) effects that might arise can be remedied before they become irreversible.

The Trans-Tasman Resources Decision-Making Committee agreed that the Supreme Court’s approach is applicable to adaptive management under the EEZ Act. ¹⁶⁹  

Adaptive Management and the Trans-Tasman Resources decision

Trans-Tasman Resources in its first application did not propose an adaptive management approach that would enable the activity “to commence on a small scale or for a short period so that its effects on the environment and existing interests can be monitored” as the applicant considered that “in order for the operation to be commercially viable, the ability to mine the whole area of the application was required”. ¹⁷⁰  Instead, Trans-Tasman Resources proposed an approach which involved: ¹⁷¹

• Qualitative environmental performance objectives (specified in the consent conditions)
• Pre-operational baseline monitoring
•  A process for developing quantitative “trigger indicators or values” which would inform compliance with environmental performance objectives
• Operational monitoring
• Management of operations to achieve the identified environmental performance objectives

The Trans-Tasman Resources Decision-Making Committee assessed the approach against the Supreme Court’s four step test.

The extent of the environmental risk: The Committee determined that “it is not possible to determine the environmental risk, especially over a 20-year timescale” due to the range of potential effects, the potential for some effects to be more than minor and the considerable uncertainty. ¹⁷²

The importance of the activity: The Committee noted that it is the importance of the activity to New Zealand, not the applicant, which is relevant. It concluded that “while the proposal will have economic benefits these are not ‘must have’ benefits that make it a truly important activity”. ¹⁷³

The degree of uncertainty: The Committee concluded that there was considerable uncertainty. ¹⁷⁴

The extent to which an adaptive management approach will sufficiently diminish the risk and the uncertainty: The Committee first considered the “threshold question” posed by the Supreme Court, that is, was there “an adequate evidential foundation to have reasonable assurance that the adaptive management approach will achieve its goals of sufficiently reducing uncertainty and adequately managing any remaining risk”?

The Committee noted that Trans-Tasman Resources proposed an adaptive management approach which prescribed a process for the establishment of quantitative triggers based on qualitative Environmental Performance Objectives. This meant that the Environmental Performance Objectives were the ‘cornerstone pillars’ of the adaptive management approach. ¹⁷⁵

The Committee was concerned that the Environmental Performance Objectives were “very ‘general and ‘non-specific’”. ¹⁷⁶  The Environmental Performance Objectives contained terms such as ‘no more than moderate’, ‘moderate impacts’ or ‘no more than moderate and temporary adverse effects’. The Committee was not confident that these could be reasonably translated into trigger values by a third party. The Committee also noted that the lack of baseline monitoring meant that it did not have confidence that the objectives were realistic and achievable. ¹⁷⁷

Having considered the threshold question, the Committee then moved on to consider the four matters outlined by the Supreme Court.

1. Is there good baseline information about the receiving environment?

The Committee distinguished King Salmon (where the Supreme Court concluded an adaptive management approach was available despite an “astonishing gap in the prediction of effects on the environment”) for two reasons. First, the adaptive management approach in King Salmon involved staged development. Second, the decision-makers in King Salmon were not subject to the requirement to favour caution and environmental protection where information is uncertain. ¹⁷⁸  The Committee concluded “while we accept it is not necessary to have all information available… we are not convinced in this case there is sufficient ‘baseline’ understanding on which to base the Environmental Performance Objectives”. ¹⁷⁹

2. Do the conditions provide for effective monitoring of adverse effects using appropriate indicators?

 The Committee determined that, given its concerns about the Environmental Performance Objectives, the applicant’s proposal to leave it up to the EPA to review the baseline data, review and approve the Environmental Management and Monitoring Plan and set the environmental triggers was inappropriate and unreasonable. ¹⁸⁰

3. Are thresholds set to trigger remedial action before the effects become overly damaging?

The Committee noted that no thresholds were proposed at this stage, instead a process by which to establish them was proposed. As above, the Committee determined that this was not acceptable. ¹⁸¹  In relation to the remedial actions proposed, the Committee stated (elsewhere in the decision) that “the applicant is effectively saying that it accepts it may need to alter its operations in order to ensure it complies with whatever quantitative performance standards are eventually established… While conceptually this makes sense to use, we struggle to understand the extent to which the applicant really does have operational flexibility.” ¹⁸²

4. Can the effects that might arise be remedied before they become irreversible?

The Committee determined that it was unable to answer this question as it did not know with any certainty what the significance of any effects would be. ¹⁸³

The Decision-Making Committee concluded that “the proposed Environmental Performance Objectives do not provide sufficient certainty, clarity or robustness on which to form the foundation of an appropriate adaptive management approach”. The Committee was also concerned “that, without the option of a scale or staged implementation, the applicant has not provided any compelling adaptive management alternatives should the environmental objectives not be met”. ¹⁸⁴

In the second Trans-Tasman Marine Consent Application, section 87F(4) which prohibits the application of conditions that amount to or contribute to an adaptive management approach for marine discharge consents, was in force, so adaptive management was not available as a tool for discharge consents. ⁴⁴⁸² As a result adaptive management within the context of the marine consent is not legally possible and the Decision-Making Committee did not consider it. ⁴⁴⁸³

Last updated at 4:34PM on December 28, 2017